One of the more remarkable developments concerning free speech on the Internet was the creation of private registrations of domain names. This allows someone to create a website without revealing their identity and thus subjecting themselves to the censorious impulses of butthurt litigants and governments alike.* Sure, it’s a tool that can be abused by spammers, fraudsters, and con-artists, but protection of anonymous speech is a long-standing tradition, harking back to the days even before the First Amendment, when John Peter Zenger refused to unmask the authors of articles critical of the Crown Governor of New York.
But that protection is meaningless if, unlike John Zenger, who had the courage to face prison to protect the identities entrusted to him, domain name registers cave in to flimsy legal threats.
Last Friday, Charles Carreon filed a First Amended Complaint (hat-tip: Popehat) in his campaign against The Oatmeal and friends. The day before that, Mr. Carreon fired off a threatening letter to Register.com, a well-known domain name register.
Mr. Carreon demanded that Register.com shut down parody site Charles-Carreon.com. He told Register.com (emphasis added):
Tomorrow I am going to amend the Complaint to allege a claim for cybersquatting in violation of the ACPA, with a prayer for imposition of the maximum $100,000 statutory penalty against ficticiously-named Defendant Doe 2
I hereby request that, prior to 3 p.m. PST on Friday, June 22, 2012, Register.com:
- Take down the Charles-Carreon.com website,
- Close the registrant account for Charles-Carreon.com
- Disclose the Private Registrant’s name and contact information to me, and
- Agree to deposit the Charles-Carreon.com domain name into court for disposition pursuant to court order
Mr. Carreon further noted (emphasis added):
The Complaint alleges the infringement of the Charles Carreon® mark by the creation of two fake Twitter accounts that were created in order to take over my avenues of free speech and convert them to conduits of disinformation about me. The Private Registrant [of Charles-Carreon.com] is doing the same thing by cybersquatting the Charles-Carreon.com domain.
Finally, he threatened to add Register.com itself as a defendant:
If Register.com discloses the identity of the Private Registrant prior to 3 p.m., I will name the Private Registrant as Doe 2 in the First Amended Complaint. If Register.com fails to disclose the identity of the Private Registrant by the 3 p.m. deadline, I will be forced to name Register.com as Doe 2 in the First Amended Complaint.
Carreon cites (among other things) a Federal District Court case out of Florida holding (unsurprisingly) that people who register trademarked domain names and then park them until they can try to sell them to the trademark owners are liable for trademark infringement. That has nothing to do with a registrant — the company used to register the domain. Never mind that 15 U.S.C. § 1114(2)(D)(iii) provides safe harbor for domain name registrars (like Register.com) unless they show a bad faith intent to profit from the domain name. (And, interestingly, if the registrar takes an act based on a complaint made with a “knowing and material misrepresentation”, the complaining party might be liable to the person who registered the domain.)
Let’s leave aside the question of whether or not the parody site is protected speech or fair use of Carreon’s service mark, which First Amendment attorney Marc Randazza casts some cold water on here, as such mark infringement claims are only viable where the registrant has a bad-faith intent to profit. Let’s further accept at face value Carreon’s claims that websites or Twitter accounts parodying him somehow prevent him from speaking out on his own website or Twitter account (which he has since deleted). It’s strangely ironic that Carreon would simultaneously decry that his critics are trying to foreclose upon his avenues of free speech while trying to prevent his critics from registering any web domain at all through this particular registrant.
More importantly: Carreon’s First Amended Complaint, filed the very next day, does not include any such claim against the creator of Charles-Carreon.com, as he had promised Register.com it would.
It appears that Register.com, not yet ready to join the National Wildlife Federation and American Cancer Society as defendants, complied with Carreon’s demand. The domain name information now discloses the register’s personal information.
possible that the owner of the site revealed this information himself, though he says on the website, “I always intended to take a bow after the play, but prefer my mask stays on while I am in character.” But, at this point, it looks like Register.com folded in the face of Carreon’s frivolous complaint and unmasked one of his critics, which is something that should worry anyone who values anonymous speech.
[Edit: Carreon’s unmasked critic adds in the comments that he did not reveal his identity willingly.]
Now, maybe Mr. Carreon will amend his Complaint again to include this new claim. Before trial, the plaintiff can amend their complaint once without permission, but Carreon has already used this freebie and he’ll have to get permission of either the parties or the court before doing so. But even if he does amend it, it’s disappointing that a domain name registry would cede a user’s information without a court order or subpoena.
[Edited to add Carreon’s threat to make Register.com a defendant.]
[*Edited to further add: Register.com's terms of service clearly don't make promises that they'll keep domain registration info private in this situation. In fact, they give Register.com the absolute right to do this. That, however, doesn't make the policy right. Domain name registers like Register.com should be pressured to better defend their users' expectations and privacy rights against more than a stiff breeze.]
UPDATE: Register.com has updated the domain name information, making the register’s information private again. Cold comfort for Carreon’s critic, as Carreon and company already have his information.
YET ANOTHER UPDATE: Marc Randazza serves me humble pie in the comments, and I’ve reconsidered how much blame Register.com deserves for this (hint: next to none).